What should we do to stop a foreclosure sale after bankruptcy? 11 Answers as of June 08, 2011

When the Mortgage in both husband and spouse name was re-financed, only the husband name is on the mortgage – so wife’s name is on the title but not on the deed of trust. The husband has listed the property on a CH 7 and the wife should file an injunction (or other procedure) – to stop the foreclosure sale since she is on title by not on the deed?

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Daniel Hoarfrost, Attorney at Law
Daniel Hoarfrost, Attorney at Law | Daniel Hoarfrost
The husband's Ch 7 doesn't do anything to stop the foreclosure.You need to look into following it up with a Ch 13 payment plan.The Ch 13 won't work, though, unless you have some way to pay the mortgage current, or put it up for sale.
Answer Applies to: Oregon
Replied: 6/8/2011
Law Office of Maureen O' Malley
Law Office of Maureen O' Malley | Maureen O'Malley
There are a lot of questions I have. How late is the mortgage? Was the mortgage listed in the bankruptcy? What was said about intentions concerning the house? If the property is tenants by entirety the creditor should not be able to foreclose as against one. Please see your bankruptcy attorney to clarify this. It's too important to handle alone or to decide on a course of action based on an email.
Answer Applies to: Virginia
Replied: 6/8/2011
The Northwest Debt Relief Law Firm
The Northwest Debt Relief Law Firm | Thomas A McAvity
A chapter 7 discharge does not impact the lender's ability to foreclose its security interest in the property. The chapter 7 extinguished personal liability on the loan but did not affect the security interest in the property at all.
Answer Applies to: Oregon
Replied: 6/8/2011
Indianapolis Bankruptcy Law Office of Eric C. Lewis
Indianapolis Bankruptcy Law Office of Eric C. Lewis | Eric Lewis
It is likely that the bank can still proceed to foreclose against the husband's interest in the property. The bankruptcy only protects him from personal liability on the mortgage note, not the lien against the home.
Answer Applies to: Indiana
Replied: 6/8/2011
The Schreiber Law Firm
The Schreiber Law Firm | Jeffrey D. Schreiber
It is not the debt which matters per se, it is the fact the husband has an ownership interest in the house which is sufficient for the automatic stay in his bankruptcy to stop a foreclosure sale until and unless the creditor files a motion for relief from the automatic stay.
Answer Applies to: California
Replied: 6/8/2011
    Law Offices of John J. Ferry, Jr.
    Law Offices of John J. Ferry, Jr. | John J. Ferry, Jr.
    Unless the mortgage company has filed a Motion for Relief from Stay, the automatic stay in bankruptcy should stop the sale, at least temporarily. Make sure both the county sheriff and the mortgage company have been given proper notice of the bankruptcy, along with a demand that the sale be stayed. Also, I'm not sure I understand what you are referring to when you say wife is on the "title" but not the "deed of trust". With real estate, the deed is the equivalent of a title. (Both provide proof of presumptive ownership.) I'm assuming you mean that both spouses are on the deed, both are probably on the mortgage, but only husband is on the loan. The answer will also depend on the law in your individual state.
    Answer Applies to: Pennsylvania
    Replied: 6/8/2011
    Bankruptcy Law Office of Robert Weed
    Bankruptcy Law Office of Robert Weed | Robert Weed
    If you've described it right, she can file a bankruptcy to slow it down, too. If she's on the deed/title, even if she's not on the loan.
    Answer Applies to: Virginia
    Replied: 6/8/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    I am guessing that you made a colossal misstep that may cost you your home. You filed a Chapter 7 pro se I bet. If you had a lawyer you would have known that the bankruptcy might discharge the debt but it does not wipe out the lien. So the lender is free to foreclose after bankruptcy. See a lawyer now to see if you have any options. None are apparent from your post. The wife has a right to notice but likely has no legal grounds to prevent foreclosure.
    Answer Applies to: Georgia
    Replied: 6/8/2011
    Carballo Law Offices
    Carballo Law Offices | Tony E. Carballo
    Whether or not the wife can obtain an injunction from a state court depends on whether or not she has any legal grounds to sue the bank and have the court issue the injunction while the lawsuit is proceeding. If the husband filed for bankruptcy and the bank obtained relief of stay from the bankruptcy court or the bankruptcy case is now closed, the wife could file for bankruptcy and stop the sale if she has an ownership interest in the property. Whether or not she should do that would be something that needs to be determined after a consultation with a bankruptcy attorney. If the wife has substantial debt that she cannot pay then filing for bankruptcy would be justified to eliminate that debt and stop the foreclosure sale at the same time. However, a foreclosure sale is stopped only for the duration of the Chapter 7 case and that is usually three months. The bank can ask the court for permission to foreclose at any time during the time the Chapter 7 bankruptcy of anyone with an interest in the property is open. A Chapter 13 case might be more appropriate if saving the house is the goal since the Chapter 7 will give the person filing for bankruptcy a maximum of about three months to stay in the house. You need to consult with a bankruptcy attorney for specific advice as to whether the wife should file and under what chapter of the Bankruptcy Code.
    Answer Applies to: California
    Replied: 6/8/2011
    Bankruptcy Law office of Bill Rubendall
    Bankruptcy Law office of Bill Rubendall | William M. Rubendall
    If there are arrears a foreclosure can be filed, no matter who is on the deed and after the bankruptcy has been discharged there is no automatic stay preventing foreclosure.
    Answer Applies to: California
    Replied: 6/8/2011
    Janet A. Lawson Bankruptcy Attorney
    Janet A. Lawson Bankruptcy Attorney | Janet Lawson
    Why don't you consider a Chapter 13 for the wife and get caught up? If that is not possible you need to consulate a lawyer where you live. You may have defenses to the foreclosure. I am only licensed in California and we non-judicial foreclosures here.
    Answer Applies to: California
    Replied: 6/7/2011
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